Santos raised the possibility during an interview with RCN Radio on 2 December. “If we want to forgive or legalize to the thousands of combatants of the FARC, we will have to be more flexible” he said.
Any final agreement made through the Havana peace talks is likely to include an amnesty for political crimes, but currently guerrillas would still be liable to prosecution for crimes involved in fund-raising for the FARC, such as drug-trafficking, extortion, illegal mining, and kidnapping.
The proposal of Santos would mitigate this by extending the understanding of political offenses to “drug trafficking or benefiting from drug trafficking”.
The guerrillas are unwilling to serve even reduced prison sentences for crimes committed during their 50 year insurgency, presenting a key challenge for government negotiators. The ability of the president to reach a lasting agreement on the issue will be constrained by the willingness of the Colombian judiciary to support concessions to the guerrillas.
Supreme Court Justice Jorge Anibal Gomez argues that “it is not possible to” include political crime as related drug, saying that “the country has a constitutional order which establishes what is a related crime and this cannot be invented. One could say that the drug was a source of funding, but then would have to say that also the kidnapping and extortion are related because they were also financed from these crimes.”
Former president Alvaro Uribe faced difficulties with the judiciary over his agreement with AUC paramilitaries, which entailed their leaders serving 8 year crimes despite, in some cases, being involved in the killing of thousands.
Not all of the judiciary are opposed to Santos’ proposal, however. Ex-judge Alfredo Beltran sees the idea as consistent with the Legal Framework for Peace, which has already been past as constitutional. This grants Congress the power to determine which crimes are tied to political offenses.
In passing the Legal Framework for Peace through judgement c-577 of 2014, the Constitutional Court warned that “Crimes against humanity and genocide may not be considered crimes related to political offenses”. The Inspector General Alejandro Ordonez has used this ruling to oppose including drug trafficking as a political crime.
But Beltran says that drug-trafficking could be addressed through a model applied in the past: “When the guerrillas raided a bank to steal money, the thesis was raised that being a common crime could be related because that money allowed him to its financing. What is clear is that the common law offense must be tied to a [political] purpose”.
The proposal has met with opposition in Congress: Alvaro Uribe, a critic of the Havana dialogues, tweeted: “Santos: drug trafficking has been connected with terrorism, not with altruistic political ends”.
Santos claimed on Wednesday that a change in the criminal status of some drug-trafficking crimes would not affect victims, saying: “The penal part is going to be based on our legal framework for the peace, and that legal framework requires us to respect the rights of the victims, the right to justice, truth and reparations.”